Some Justice for Sandy Hook
by Ralph Nader
Ralf Nader Radio Hou
August 27, 2022
https://www.ralphnaderradiohour.com/som ... andy-hook/
RALPH NADER RADIO HOUR EP 422 TRANSCRIPT
Tom Morello: I'm Tom Morello and you're listening to the Ralph Nader Radio Hour.
Steve Skrovan: Welcome to the Ralph Nader Radio Hour. My name is Steve Skrovan along with my trusty co-host David Feldman. Hello, David.
David Feldman: Hello, Steve. This is very exciting. We have a full audience. Steve Skrovan: Got a full house here for our live Zoom event, which we always appreciate. And we've got the man of the hour here, Ralph Nader. Hello Ralph.
Ralph Nader: Hello, everybody around the country and the world who is watching.
Steve Skrovan: Yeah, we've got Germany. We've got Cape Town, South Africa as well as all across the country. And you're here on a great day on a great program. Our guest today will be Attorney Josh Koskoff, who has taken Remington [Arms] and other arms manufacturers to court on behalf of victims of the Sandy Hook in Las Vegas mass shootings. Mr. Koskoff’s work has held the manufacturers accountable in court. It is also forced a reckoning with the insurance companies, right-wing media and others who have been profiting—let's just put it that way—off the dangerous marketing strategies of gun manufacturers.
Holding negligent or malicious companies accountable isn't just about the money. It is, of course, partly about the money because profit-driven corporations only change when their bottom line is threatened. But taking companies like Remington to court allows the victims, their families, plaintiff's attorneys, and the public at large to access internal documents that not only prove wrongdoing in the past but help prevent harm in the future. And that is the importance of torts that if you're a listener of the show, you know we talk about all the time.
So first, Ralph and Mr. Koskoff will go through the case, then we'll invite our live Zoom audience to ask Mr. Koskoff some questions. As always somewhere in the middle we'll check in with our corporate crime reporter, Russell Mokhiber. But first, let's hear from the man who secured a landmark settlement in a case against the firearms industry that everyone thought was “a losing proposition”. David?
David Feldman: Josh Koskoff is an attorney specializing in medical malpractice and personal injury at Koskoff & Bieder. His work includes a recent $73 million settlement on behalf of families of the Sandy Hook shooting in a case against Remington, the company that made and marketed the AR-15 used in that shooting. Welcome to the Ralph Nader Radio Hour, Josh Koskoff.
Josh Koskoff: Thank you very much to you, David, to Steve, and of course, to one of my idols growing up, the first person I ever voted for, actually, Ralph Nader. It's a little bit surreal to now be on a program with Ralph and I truly treasure it.
Ralph Nader: Well, thank you very much, Josh. And before we get into your groundbreaking case, let's talk a little bit about history. Ever since the Columbine massacre in Colorado about 20 years ago, there have been increasing numbers of these massacres by young men largely who were known as loners by their associates or neighbors and who harbored some grievance, had rather implicating websites to indicate how deep their torment was or their disassociation from their normal community.
How do you explain that in almost all Western countries, for example, there are no such massacres? Japan has fewer arms related deaths in the entire country of 120 million people than in a mid-sized town in the US. How do you explain this? And does it have anything to do with the enhanced weaponry? And does it have anything to do with the enhanced social media and the enormous publicity one massacre is given that tends to arouse some young person to do the same thing in another community? Give us some context here.
Josh Koskoff: Sure, Ralph. And this is not an area that I knew much about ten years ago. In fact, I was somewhat ignorant about the gun industry, and I certainly didn't know anything about gun laws, but I had to do my homework over the last ten years. And I do think that—first of all, there's a lot to your question, not surprisingly, a lot of the factors. To point out one obvious factor is the sheer number of firearms available and in private ownership in this country, something along the lines of 400 million firearms. And firearms, unlike other products that we know deteriorate over time, firearms don't. So, I mean, that's what—just ask Alec Baldwin. Firearms, once purchased are useful to kill forever.
So there's just that fundamental fact. But I think the interesting thing I took from my deep dive into the issues in the Sandy Hook case is that there were in fact always available AR-15s, for example, or what we would commonly call assault rifles, in this country. When we were growing up, there were AR-15s, but we didn't know about them as kids or as young adults because the industry had no access to us. They couldn't reach us. They couldn't market to us. But they were always available, and we didn't have the mass shooting problem that we now do.
And I think you touched on it, and I think we would all agree, and all your listeners would agree that being a troubled loner, a young kid, going through the turmoils of adolescences or being bullied, that definitely we had when I was growing up. And I remember being on the wrong end of that kind of situation. But the gun industry couldn't take advantage of that. They couldn't try to acquire me as a future consumer or promised me an end to all of my problems with a glorious combat mission. And that did change.
It actually really changed in about the mid 2000s, but it was probably changing before then. The Columbine kids got their hands on some pretty nasty firearms, but it was pretty much of an exception. Because really, if you and your audience think about it, the mass shootings that we're seeing that we think of have really all occurred in the last 15 years. And that's as a direct result of the ability of the firearms industry to reach minors and troubled young adults going around the parents through the internet, through first person shooter games. And it's also because of a deliberate effort to sell lore in these combat missions of lone gunmen. And so it's no secret. You have been on this issue for years, Ralph. If you market a product for a particular use, it's going to be used by certain people in that way. It's just human behavior. And it's why marketing is a multibillion-dollar industry.
Ralph Nader: Well, the arms industry used to sell primarily to customers of the Pentagon for use in wars, then they would sell to hunters, and they would sell to marksman. And now they're micro selling more and more to different groups of people, including direct selling to what they must have known are troubled young men with fantasies. And you dug up the marketing messages for that in your suit regarding the Sandy Hook massacre against Remington. Can you describe just how detailed and tailored these advertisements were?
Josh Koskoff: Well, it should come as no shock that because you see the tip of the iceberg of the marketing, which is of course the promotional material and the slogans and the emotional connection they're trying to make with a potential consumer, and the iceberg itself reflects a very deliberative effort to reach, to your point, and target an ever-expanding audience, notably a younger audience.
Because, again, I can't emphasize enough, the normal barriers that would've restricted an inappropriate or immature consumer in the days prior to the internet were obliterated. And the parent's role has been obliterated, such that the industry has taken full advantage of courting these young users with ferocious military weapons and promoting what is essentially a criminal use. And the parent has no idea what's going on.
And so what we found in a general way, and we'll be releasing the documents to the public over the next three months or so, is what you'd kind of expect, as if they were selling widgets-- spreadsheets, PowerPoint presentations deliberate efforts to target, as you note, a more micro target, different segments that had previously been unavailable to the industry. And of course they sell different messages to different target markets.
Ralph Nader: Tell us some of the phrases they used, which they knew would reach these troubled young men in their late teens and early 20s.
Josh Koskoff: One is “Consider your man card reissued”. I think people have seen that. Many people who are at least maybe peripherally familiar with the type of marketing. Prior to Bushmaster’s acquisition. Bushmaster was a major manufacturer of AR-15s. There were only two Bushmasters in Colt. And their marketing, I think, Ralph, you and I would even say was sober, responsible marketing prior to their acquisition by a private equity fund. And then there was an inflection point where they started a more aggressive promotion of not the weapon per se, but the emotion and the masculinity that the weapon conveyed. And so they equated ownership and use of an AR-15 with masculinity. So one of their ads said, “Consider Your Man Card Reissued.” And in fact, you could even earn your “man card”. You would get a card if you purchased one of these AR-15s.
Another one was something that we made great use out of in a very tragic situation, which is they had a weapon called the Adaptive Combat Rifle and their promotion of that was “Forces of opposition, bow down. You are single-handedly outnumbered.” “Forces of opposition, bow down. You are single-handedly outnumbered” for a product that is being sold to any civilian kid, really, that wanted one. So that's clearly the promotion of a lone gunman mass shooting. There's no non-criminal use that could be described in that way in civilian life. That's an ambush.
And then that finally I'd say, and this will strike you all, I think, as harrowing. They had a promotion that said, “Clear the Room, [Cover the Rooftop], Rescue the hostage,” but clear the room. And when I put that question about clearing the room, I mean, what could that possibly mean when you're talking about the commercial sale of an AR15? How can you clear a room? And I asked them to describe, Ralph, “take as much time as you want, Mr. Gun executive, describe how you can clear a room with a commercial use in a noncriminal way.” And they couldn't do it. It was like a deer in the headlights. And when I asked them whether they could think of an instance of criminal use of one of their weapons in which a room was cleared, invariably, they had to agree that the Sandy Hook school shooting fit that description.
Ralph Nader: Well, describe for our listeners how much more powerful the AR-15 is compared to its predecessors. And also tell them that it was once banned in the United States and what happened.
Josh Koskoff: That's right. Well, let's start with the first question, which was very pivotal to my understanding of what an AR-15 was and its relationship to a regular firearm, to uncover declassified field tests of the AR-15 in the jungles of Vietnam and reading about actual reports from soldiers who rated military weapons. The military was looking for a new battlefield weapon to sort of compete with the Kalashnikov rifle or what folks known as the AK-47, which is sort of like the gold standard assault rifle. So this company ArmaLite developed the AR-15. And Ralph, there are actual ratings by soldiers in different categories. The tactical efficacy of the weapon, the lethality of it, the ease of use, whether it jams or not, its use in an ambush, and all these types of things that would be very helpful in the battlefield and taking on the enemy. And the AR-15 destroyed its competition, including something called the Thompson submachine gun or the Tommy Gun as folks may know of it.
And what I think is so telling about that is that the Tommy Gun was effectively banned in 1934 by the government. It was really taxed into oblivion, but the concern was that it was too dangerous for our communities. And in fact, gangsters like Al Capone and Pretty Boy Floyd had used the Tommy Gun in some very notorious mass shootings that today would hardly rate. They wouldn't even be on the front page of a paper. But everybody was freaked out about the Tommy Gun’s threat to public safety. And Democrats, Republicans, the NRA [National Rifle Association], and even Colt, the manufacturers, all got together to figure out a way to effectively ban the Tommy Gun. So that's important when you consider that the AR-15 destroyed the Tommy Gun in terms of its desire to be used to kill enemy combatants at war in these field testing. So what does that tell you about how dangerous this weapon is?
Ralph Nader: And when was it banned by Congress and why is it no longer banned?
Josh Koskoff: Sorry, the Tommy Gun is still banned and led to the ban on automatic rifles. The AR-15—what we'll call Assault Rifle AR-15 type rifle and there are others in that category, but for the purposes of this conversation, we'll just call them AR-15s—they were banned in 1994, not just by [Bill] Clinton and Democrats, but with the help of President [Ronald] Reagan, former President Reagan, who was very concerned about their use by criminals to effectively outgun the police. The concern at that time wasn't so much about mass shootings because, again, there really weren't any mass shootings with the AR-15 at that time. Of course you didn't have the ability to promote crime essentially to sell the weapon that you do today.
But putting that aside, there was a lot of concern about the police being outgunned and they got it past Congress, but that had a ten-year sunset provision. So it would have to be renewed after ten years. Ten years later in 2004, we were at war with Iraq, and we had a different administration and there wasn't a lot of energy, and the NRA, they do a good job lobbying. It's not a moral job, but it's an effective job. They did a good job lobbying Congress not to renew the assault weapons ban.
It is also questionable whether the assault weapons ban had had the desired efficacy. It wouldn't be surprising if it wasn't the most effective legislation. Because one of the problems I've seen is that elected officials are busy. They've got a lot of issues to deal with and most of them don't understand what makes a weapon dangerous and what doesn't. So the assault weapons ban was in large part they banned things that looked scary, right? Like a grenade launcher or certain stock, but they didn't really ban the core features of the weapon that make it so lethal. But in any event, there was just no appetite to renew it in 2004. And that of course helped sales as well.
Ralph Nader: Listen, I'm sure listeners want to zero in on your case, your celebrated case that you brought against Remington. Nobody thought you had a chance. Go through the sequence, but first describe the massacre briefly that occurred in Sandy Hook in Connecticut. And then there was other cases that were filed before you entered the litigation just briefly and then go into your litigation.
Josh Koskoff: Okay. Sure. First, the description of the shooting is brief because it was a brief amount of time. Four minutes and 59 seconds, 156 shots fired, 26 killed, 20 children, all first graders between the ages of six and seven, and six adult educators. It's noteworthy that although from the first shot to the last shot was about four minutes and 59 seconds, the shooter wasn't shooting that whole time. Probably the shooter was shooting for two minutes or less. And that tells you all you need to know about the fire power of this weapon.
There was one lawsuit filed right away that was instantly, and I think appropriately, excoriated by legal community and the general public as being one of those opportunistic type things. There was another lawsuit that was filed against the school because there were issues about the failure of one of the classrooms to lock. I did not handle that case. It was not really a case that I was comfortable with. But as a principal of tort law, I couldn't say it wasn't a valid case. But somebody else filed that case. And we were really looking at whether or not there were any legal causes of action as it related to the weapon and its manufacturer and sale effectively. And as it turned out, its marketing.
Ralph Nader: Now, there were laws that protected the arms industry, including in Connecticut. They shielded them from any kind of civil action for the use of their weapons. And you found a statute in Connecticut that went into one of the exemptions under this Connecticut state law shielding the arms manufacturers, which is they had to not violate the marketing rules of the state of Connecticut. And that's where you found your entry.
Josh Koskoff: Effectively. Exactly. And I think this goes back to your original sort of observation, Ralph, about how it’s more and more becoming a problem and when and where and why it happened. So in 2004, remember this, so you have the assault weapons ban lapsing. In 2005, you have Congress passing, giving the NRA and the gun industry was effectively a Christmas present and providing a thumb on the scale of the industry in what otherwise would be settled in courts, right? And we've seen this in other industries from time to time, but not quite like the gun industry. So they provided what was thought to be an immunity and is an immunity of sorts, but it's not an absolute immunity. And it never was.
I think there was a perception prior to our lawsuit that you couldn't sue a gun manufacturer. I heard that time and again. I was luckily naive enough and ignorant enough and hadn't been involved in any cases to be sort of weighed down by the pessimism. And what the immunity says is that—it's called the Protection of Lawful Commerce in Arms Act. And it has a lot of protections like it basically obliterates your common law negligence causes of act
ion, but it's the protection of lawful commerce. It doesn't protect unlawful commerce and arms. And so what you're talking about is Connecticut had a state statute that prescribed a certain marketing conduct. Every state has these statutes, consumer protection statutes. And we said, “That's a statute that is applicable to the sale or marketing of firearms, and you, Remington, et al, broke that law.” And that allegation withstood the challenge by the defendants to dismiss the case pursuant to the immunity. So we effectively got through that immunity.
Ralph Nader: And you found that Remington appealed it to the Supreme Court of Connecticut. You won there. They appealed it to this US Supreme Court, which denied to take the case.
Josh Koskoff: Yeah. I think if I gave the impression that this was a motion that was filed that was just granted or that they lost and the case went forward, then I gave definitely the wrong impression. What I just described took years and years to sort out before we even engaged in really meaningful discovery. And in fact, the trial court did dismiss the case and it was the Supreme Court of Connecticut that reversed in part because there was another part of the case that we don't have time to get into, I'm sure, but which I thought it was a valid claim, but the Supreme Court agreed with the trial court that it wasn't.
But it didn't matter because we were green lit and got through the immunity, which meant we got to a place that none had really been before in terms of a manufacturer. And that was discovery. So if you can imagine, it's like opening the doors to a cave, a dark cave that's never been explored. And that's how I kind of looked at it.
Ralph Nader: Well, listeners should know that Josh Koskoff is a very rare trial lawyer. Most trial lawyers would've been daunted by the corporate law firms representing Remington. And even after winning the legal issue, they would've settled for far less than Josh settled for for his families at Sandy Hook or his clients. But he also demanded the production of documents, the internal memos, the marketing shenanigans, the boasting, and Remington resisted that. But he held firm, and he got over $70 million settlement, but he also got—what—30,000 documents, which you are now empowered by the settlement to release to the public as you wish and when you wish to further enlighten the marketing shenanigans of the industry.
Josh Koskoff: Correct. I mean, it was closer to probably now 70,000 individual documents, some of which have many pages. Of course, a lot of the documents you get, as you know, Ralph, don't help advance any understanding of what happened. You get everything dumped on you. And so part of the process is curating those documents so that you are actually helping in the understanding to the general public and helping—although I appreciate the kind words, really, when you have families like this, they're resolve to get this done and to not settle for anything short of a) the full amounts of the available coverage and b) but more importantly, the documents so that they could achieve the families’ one main unifying goal because they're all different people, remember, was to do whatever they could to help prevent the next Sandy Hook. So I know I grew motivation from their determination.
Ralph Nader: Kudos to those valiant families for persisting. And a lot of plaintiffs would've said, this has been an excruciating multi-year litigation; were really impatient; we can't take the pressure anymore. But they really wanted the public to know. And they wanted the case and the settlement to be a deterrent, as you say. That's one of the purposes of tort law, not just compensation, but public disclosure of the wrongdoing and deterrence against future repetitions. Well, do you see any deterrents among the arms manufacturers? Are they cleaning up their act?
Josh Koskoff: No, I don't think they are cleaning up their act. From what I can tell from my early look at the Uvalde case and the Highland Park case and the Buffalo case, which is the same weapon that was used at Sandy Hook, so I already knew about that. What I can tell from these other companies is they're drawing a page out of the same Bushmaster Remington playbook that delivered the Sandy Hook shooting and played a role there. I can establish, really, that it played a role. So, look, I don't think it's a secret that the gun industry is not known for self-reflection or flexibility or even consideration of public safety. It's not just an industry….
Ralph Nader: How about its insurance companies? Like Liberty Mutual was one of the insurance… are they putting pressure on their clients, the arms manufacturers, because they have to shell out the money?
Josh Koskoff: Yeah. You know, what's interesting, Ralph, to understand how this industry, the scale of the industry is really, really small industry—the gun industry is. We think of it as a massive industry because of the harm that it causes and the damage it does. 40,000 deaths or something like that a year. And of course it has a presence in our daily life, almost unlike any other industry. But that is a perception that is at odds with the reality. It's about 1/50th. For every dollar of the tobacco industry, the gun industry is about 2 cents.
So, the reason I'm saying that in response to your question about the insurance industry is the insurance doesn't collect a lot of premiums from the gun industry. And I don't think that they were—from what I can tell, they are more hands-off of the gun industry than they are certainly of my driving/my auto rates. I hear from my insurance carrier every time I get a speeding ticket. But I don't think that—from what I understand, the insurance industry until our case really didn't look into the practices of their insured. And I'm hopeful that one of the results of this will be that they will do that because they are a great free market. Of course, we all have issues with the insurance industry as well. But one thing the insurance industry can deliver is free-market help in the face of public health crisis like the gun epidemic by creating a free-market incentive to cleaning up the act of the gun industry. So I'm hopeful that happens. But I think that remains to be seen.
Ralph Nader: Well, are there going to be similar lawsuits or are there similar lawsuits in the Buffalo massacre, the Highland Park massacre, and the Uvalde massacre against the arms manufacturers?
Josh Koskoff: Well, I think that right now they're all under investigation is my understanding. And full disclosure - our firm represents families in all of those instances - one thing I think is a step in the right direction. And I think this will sound like maybe deja-vu of a nature to you. But ten years ago, we had no competition for this case. No lawyer wanted to touch it. Even some of my partners, the best they could sort of muster was “Good luck with that.”
And ten years later, I'm finding that in the Uvalde situation, there are lawyers who really want to be involved, who see a possibility or a path, no longer believing it to be impossible. And I think that one of the legacies I hope of the Remington case is that it did shatter that perception of invulnerability and engage trial lawyers who could be such a part of the solution here and who historically have been. And I'm talking to you, of course, as the poster (man) child of what trial lawyers can do. And we stand on the shoulders of people like you who have taken on other cases. I'm not just saying that because you're interviewing me. I'm saying it because it's true. And people listening, I think many of people listening will be lawyers and many won't, but I think when trial lawyers are doing the best of work they can, they are having an effect that helps communities and holds corporate America to task.
Ralph Nader: We're talking with Josh Koskoff, the plaintiff lawyer who brought the case against Remington Rand involving the Sandy Hook massacre and broke ground in this area. One last question before we go to the audience. I'm sure some of our audience are wondering about the lack of impact of public opinion. The vast majority of people in this country want background checks. They want safety locks. A smaller majority wants a ban on these automatic semi-machine guns. Even some members of the NRA want background checks and other gun safety controls. And yet Congress is still under the influence, at least for a workable opposition to gun safety laws under the NRA. When do you think this logjam is going to break? Because we used to think that if there was a massacre every year, it would put pressure on members of Congress to change their minds. But when do you think that's going to break through since you've been in touch with members of Congress?
Josh Koskoff: Well, first of all, I don't want to give the impression that I've been involved in the political process. The reason I was in Washington recently was really just to support the Uvalde families and shepherd them. I actually by design stayed away from politics in this case. And in fact, one thing I think I would've been aware of even ten years ago was that the government had been almost historically impotent at dealing with this issue that we have, this shameful issue we have. And I don't think it is going to resolve anytime soon. And I do think that there could be— and there have been mass shootings, not just once a year, but once every other month and it hasn't moved the needle. And I think it is a parallel to the extremism that is the tail that's wagging the dog of politics, especially on the right today.
Your point is well taken. A majority of the voting electorate would favor tighter regulations along the nature of what you said, but we're not in a majority. We're in a minority-controlled capitalist situation right now and that's not changing anytime soon. I mean, it's very equivalent in my mind to the purism that would kick out one of the most conservative people that I've been aware of, which is Liz Cheney from a party because she won't back an extremist theory. This is an industry and the NRA is a lobbying agency that caters to its most extreme members. Because to be honest, they would sacrifice every person who buys one or two weapons in favor of the people who buy ten, 15, 20 weapons. And so they're not about to hack off their most luminous buyers. That's a fact. I've seen the numbers. So that's your answer, Ralph. And the NRA, so one more thing. Because I think that one of the things that listeners may want to take from this, the perception versus the reality--the perception that the industry is a big industry, the reality that it's a small industry; the perception they can't be sued, the reality that they can; the perception that you have to abide by the NRA edicts or you're not going to get re-elected also may be inconsistent with the reality. But it's a strong and dangerous perception.
Ralph Nader: And the perception that the NRA and others pour campaign money into the coffers of these politicians is also a reality. Let's go to the audience. And people who are outside the country watching this should remember Josh Koskoff’s estimate, which is pretty accurate, that about 40,000-gun related deaths occur in this country every year, which is far, far greater than all the gun related deaths that occur in all Western countries, including Japan and Taiwan.
Steve Skrovan: We've been speaking with Josh Koskoff. We will link to his work at ralphnaderradiohour.com. Up next, an exciting update about the Capitol Hill Citizen and a Q&A with our virtual audience. But first, let’s check in with our corporate crime reporter, Russell Mokhiber.
Russell Mokhiber: From the National Press Building in Washington, D.C., this is your Corporate Crime Reporter “Morning Minute” for Friday, August 26, 2022; I'm Russell Mokhiber. A $1.7-billion jury verdict against Ford Motor Company involving a fatal truck crash called into question the roof strength of older-model Super Duty pickups sold by the company over a roughly 17-year period. That's according to a report in the Wall Street Journal. Last week a jury in Georgia reached a verdict in the case involving a 2014 rollover of a Ford F- 250 pickup truck that left two people dead. The jury determined that punitive damages should be imposed on Ford for selling 5.2 million Super Duty trucks with what the plaintiff's attorney said were dangerously weak roofs that could crush passengers in a rollover accident. For the Corporate Crime Reporter, I'm Russell Mokhiber.